Commentary on Political Economy

Friday, 17 August 2012

Freedom and Necessity in the Negatives Denken

Two recent events, though apparently unconnected and disparate, have brought home over the last day the utterly vile, execrable, odious and deleterious character of the capitalist oligarchies that rule the entire planet today, from Washington to Beijing to London and Johannesburg: - the abominable contortions of that most vile and cowardly of cowards, the British Prime Minister David Cameron who has taken the decision to persecute Julian Assange, and that equally bestial government of Zuma's in South Africa that has ferociously butchered 34 innocent and hard-working miners on behalf of a multinational corporation, Lonmin.Let each and everyone of these egregious, cold-blooded assassins and persecutors of us revolutionaries know that we will not rest, we will have no peace until we have persecuted and hunted down each and everyone of them and have brought to bear the full weight of revolutionary justice upon these cold-blooded serpents. For the moment, we are bringing forward the publication of this piece on "Freedom and Necessity", which is a revised and improved version of an earlier piece, wherein we discuss a new conception of a framework of political analysis upon which we may found our revolutionary and insurrectional thoughts and actions.

Freedom and Necessity
- Schmitt and the Exception

A. The Exception and the Rule

A “theory” is
an explanation of life and the world that attempts to encompass them in their
“totality” by “con-necting” their “parts” in a “systematic” manner that is
internally consistent and that, through this “consistent nexus rerum”, achieves the adaequatio
rei et intellectus of Scholastic fame. It follows that a theory must
connect the relationship of the parts to one another in a manner consistent
with the “systematicity” of the whole. Consequently, regardless of the content
of the theory, the con-nections between parts and of the parts in their
totality must be “necessary”. This “necessity” removes any “freedom” that the
parts may have had in relation to the totality in such a manner that the theory
admits of no “exception” that is not re-conducible to or con-sistent with the
totality and its “systematicity”.

This logical notion of “freedom” as the
opposite of logical necessity has nothing to do with the political notion of freedom. Indeed, political freedom is not
analogous to “contingency” or “chance”, it is instead their opposite and in
fact ought not to be called “freedom” at all! Freedom is a political notion –
the opposite of “coercion” (Arendt in ‘LotM’). Once the notion of “freedom” is
reduced to the opposite of logical necessity, then it becomes mere
“contingency” and is reduced to an “onto-logical” problem. The fact is that, as
we are demonstrating here, there is no such thing as “logical necessity” so
that all “truths” are “contingent”. But
the fact that “truth” can be understood as logical or scientific “necessity”-
that the “necessity” of logic or science is what makes it “true” - and that “freedom”
can be mistaken for “contingency” or “chance” means that “truth” or
logico-mathematical necessity can be
abused or be used instrumentally for the purpose of political coercion! By this
process, “freedom of the will” can be
mistaken for a “telos” that, by positing the “systematicity” of life and the
world as a “totality” becomes a quest for “freedom from the will” – which is what the negatives Denken claims whilst at the same time, by denying the
existence of “freedom” in a political sense (because it understands freedom
only ontologically), it denies the possibility of political freedom or else
reduces it to contingency, to superfluity (Sartre’s “de trop”, Heidegger”s de-jection and Dasein as pro-ject). Freedom is understood then as “universal
Eris”, as total conflict so that freedom is no longer a function of the will
but the will becomes a function of “freedom” understood as cosmic “contingency”
(Schelling).

It is this reduction of political freedom to
contingency or chance – to free-dom - that is clearly unacceptable in the negatives Denken. Yet the valuable and valid
aspect of the remarkably novel and revealing approach to freedom taken by the negatives Denken is that it
re-introduces the notion of “decision” (in Schmitt, “resolve” [Gewiss] in
Nietzsche, and “resoluteness” or “dis-closure” [Entschlossenheit] in Heidegger),
and therefore of the effect of one will coming into conflict with another,
which is the essence of the Political.

Arendt
correctly distinguishes between freedom (political) and contingency
(ontological), pointing to their discrete opposites – coercion or necessity,
and logical necessity or “irresistibility”. But she fails to see that there is
nothing “irresistible” or “true” about logico-mathematics and science, that
these also are contingent and conventional, and that therefore these
(contingent, arbitrary) conventions can be utilized for the purposes of
coercion by erecting “measurable frameworks” of conduct (institutions) that
force human conduct and choices into “measurable” channels or behavioral
straitjackets. The “irresistibility” of mathesis can ec-sist only as a value,
as “truth”, and therefore as a “will to truth” that is “internalized” to coerce
human behaviour. This is the “necessity” of mathesis – precisely, a
“restriction” or channeling of human freedom understood not ontologically (as
contingency, which is categorically not, and can-not be affected by mathesis) but rather politically.

The negatives Denken understands “free-dom”
as the battleground of conflict between wills. For Weber, for instance,
the individual will acts freely if it
acts “rationally”; and “rationality” is defined as the will’s choice of
adequate means in pursuit of its own ends. This “choice” the will makes is
therefore con-ditioned by the choices of other wills in conflict with it. In essence, for Weber, rationality is the
game-theoretic strategy that is chosen by independent and conflicting wills freely pursuing their irreconcilable
ends or wants whose provision is scarce. The “freedom” of the will is
de-fined not intrinsically as in the ‘Freiheit’ of German Idealism but rather
instrumentally in terms of the relationship of given means to projected ends.
It is “free-dom” in the sense of “room to manoeuvre” (Ellenbongsraum) – to manoeuvre against
other wills, that is. Thus, there can be no “freedom of the will” in the
objective genitive. It is the will that is a function of free-dom, not the
other way around – which means that the “freedom of the will” has no positive
universalistic telos or inter esse,
but is rather the op-posite, the contrary of this inter esse.

This crucial
kernel of Weber’s Wissenschaftslehre
is clearly perceived by the great jusnaturalist philosopher Leo Strauss in a
passage that is worth quoting for its impressive perspicacity:

Let us assume

that we had genuine knowledge
of right and wrong, or

of the Ought, or of the true
value system. That knowledge,

while not derived from
empirical science, would legitimately

direct all empirical social
science; it would be the foundation

of a l l empirical social
science. For social science is meant to be

of practical value. It tries
to find means for given ends. For this

purpose it has to understand
the ends. Regardless of whether

the ends are " g i v e n
" in a different manner from the means, the

end and the means belong
together; therefore, "the end belongs

to the same science as the
means."9 If there were genuine

knowledge of the ends, that
knowledge would naturally guide

all search for means. There
would be no reason to delegate

knowledge of the ends to
social philosophy and the search for

the means to an independent
social science. Based on genuine

knowledge of the true ends,
social science would search for the

proper means to those ends;
it would lead up to objective and

specific value judgments
regarding policies. Social science

would be a truly policy-making,
not to say architectonic, science

rather than a mere supplier
of data for the teal policymakers.

The true reason why Weber
insisted on the ethically

neutral character of social
science as well as of social philosophy

was, then, not his belief in the
fundamental opposition of

the Is and the Ought but his
belief that there cannot be any

genuine knowledge of the
Ought. He denied to man any science,

empirical or rational, any
knowledge, scientific or philosophic,

of the true value system: the
true value system does

not exist; there is a variety
of values which are of the same

42 NATURAL RIGHT AND HISTORY

rank, whose demands conflict
with one another, and whose

conflict cannot be solved by
human reason. Social science or

social philosophy can do no
more than clarify that conflict and

all i t s implications; the
solution has to be left to the free, nonrational

decision of each individual.

I contend that Weber's thesis
necessarily leads to nihilism or

to the view that every
preference, however evil, base, or insane,

has to be judged before the
tribunal of reason to be as

legitimate as any other
preference. (L. Strauss in Natural Right
and History)

For the negatives Denken there is no “freedom”
in an ab-solute, idealistic sense: freedom exists only as “contingency”, as the
opposite of “necessity”, not of “co-ercion” - onto-logically, not politically!
And insofar as there is freedom, as in Schopenhauer or Heidegger, this ec-sists
only as “transcendence”, as a “leap of faith”, as “intelligible freedom”, as
the ab-strusion of the Will from the
world either as “self-awareness” (even in Kant’s “astute theology” [note the
etymological link between “theory” and “theo-logy”]) or as the possibility of
“nothing-ness”, as “pro-ject” (as in Heidegger’s Da-sein).

The negatives Denken replaces the Idealist Freiheit which, as we have seen, turns
by reason of its “systematicity” into a quest for “freedom from the will”, from its “arbitrariness”, with the conversion of
this teleological “freedom” into an instrumental “free-dom”, one that is
intended not as a telos, as an aspiration, but rather as its opposite, as
“decision”, and therefore as “contingence”, a mere lack of conceptual or
material “necessity”; and thus it conceives of the Will as an antagonistic
“universal condition”, as the obverse of Kant’s Dinge an sich. The de-struction of the telos of “freedom” and its
reduction to conflictual and contingent “free-dom” invites and elicits the
destruction of any “system”, of any teleological “rule” by means of “the
exception”. The only real “decision” possible is ultimately a “decision on the exception”. For the negatives Denken the exception and the
decision it entails necessarily is not what con-firms the rule, not Hegel’s negation that is meaningfully and dialectically re-absorbed within the
rational “System or Science of Logic” by the “negation of the negation”. No
such “repechage” is possible for the negatives Denken. Instead, it is the
exception that determines the very essence
of the rule, the “truth” of the system, by de-fining its limits. Schmitt quotes from Kierkegaard (in PT, p15): “The
exception explains the general [the rule, the system] and itself.” Yet if the
exception “explains the general”, it can do so only if it “de-structs” the
general or rule or system – if it negates the “system” as a “totality”, as
“truth”. Any attempt to erect the system to a universal application – as the
Sozialismus seeks to do in politics with the harmonious State-less society and
in politics with the just remuneration of “labour value” – will result only in
the suppression of any “free-dom” that remains beyond the grasp of the system
and within the purview of the exception.

Schmitt writes
(p15):

It would be consequent rationalism to say that the exception
proves nothing and that only the normal can be the object of scientific
interest. The exception confounds the unity and order of the rationalist
scheme.

Here the negatives Denken can conceive of the
will only negatively as a destructive
force that “works” or “uses” the world only in the sense of “consuming” it –
because the opposite, the will and its Arbeit
as the “creation” of “wealth”, would entail the possibility of a “common-wealth”, of an inter esse common to all wills, and not
merely a subjective “greed-dom” or appetitus.
This de-struction of “truth”, of the telos of freedom, entails also the
de-struction of Reason and the Ratio as the summum
bonum of humanity, as the Platonic Good. (Lukacs’s indictment of this
tragic denouement into what he calls “nihilism” in Der Zerstorung der Vernunft and his late-Romantic championing of
“Reason” is pathetic in the extreme
and serves only to highlight the Wille
zur Ohnmacht of the Linkskommunismus
at the time of the WeimarRepublic.) In
this perspective, not only can the Logic not be a “science” as in Hegel and
even in Kant where synthetic a priori
judgements are made “possible” by Reason, but it becomes a mere instrument of
the intellect – this last understood as mere perceptions or sensations (Empfindungen) in accordance with
causality and the principle of sufficient reason. Yet in much of the negatives Denken, from Schopenhauer to
Weber for instance, the attachment to “science and rationality” (even when
conceived as instrumental) remains steadfast. We have seen that Nietzsche
ridicules this Schopenhauerian atavistic attachment to “scientific and logical
rationality”, although it was his “Educator” who first insisted on the purely
“instrumental”, non-theological,
ontological status of logic (see G. Piana, ‘Commenti su Schopenhauer.’, 2).

Schmitt
remains attached to this “juridical” notion of the exception:

That a neo-Kantian like
Kelsen does not know what to do with the exception is obvious. But it should be
of interest to the rationalist that the legal system itself can anticipate the
exception and can “suspend itself”….But
how the systematic unity and order can suspend itself in a concrete case is
difficult to construe, and yet it remains a juristic problem as long as the
exception is distinguishable from a juristic chaos, from any kind of anarchy…From
where does the law obtain this force,
and how is it logically possible
[m.e.] that a norm is valid except for one concrete case that it cannot
factually determine? (p15)

We saw earlier
in our Weberbuch that Bobbio moves
the same objection to Weber and Kelsen against the neo-Kantian determination of
“the Norm” and its sociological implications – the fact that “Norm” must
include also the notion of “apparatus” or “coaction” wherewith it can be en-forced. This calls into question the
notion of “the State”, which Schmitt so far does not explain. For the state of
exception is one that, like the Hobbesian and Schopenhauerian and Nietzschean,
calls into question the entire socio-ontological foundation of the state and
society, and not merely the concept of a “juridical legal order”. Schmitt
correctly identifies the two moments of the legal order – the norm, what gives
“legitimacy” to the legal order, and the decision, which gives effect to the
“legal order” when it has “legality”. But the two moments – legitimacy and norm
on one side and legality and decision on the other – remain distinct and
separate to the point that they are aporetic and irreconcilable: this is the
reality that “the exception” and the state of exception expose, regardless of
whether the “state” of exception is an organized state or a state of anarchy!
By pre-serving the conceptual legitimacy of “the state” as an entity Schmitt
has a-voided the question that he had posed himself originally: - that is, how
can a “state” exist as the foundation of a legal order founded on a “norm” when
in fact the exception shows that it has no socio-ontological foundation?

If measures undertaken in an exception could be
circumscribed

by mutual control, by imposing a time limit, or
finally, as in the

liberal constitutional procedure governing a state of
siege, by

enumerating extraordinary powers, the question of
sovereignty

would then be considered less significant but would
certainly not

be eliminated. Ajurisprudence concerned with ordinary day-to-day

questions has practically no interest in the concept
of sovereignty.

Only the recognizable is its normal concern;
everything

else is a "disturbance." Such a
jurisprudence confronts the extreme

case disconcertedly, for not every extraordinary
measure,

not every police emergency measure or emergency
decree, is

necessarily an exception. What characterizes an exception is principally

unlimited
authority, which means the suspension of the

entire
existing order. In such a situation it is clear that the state

remains,
whereas law recedes. Because the exception is different

from anarchy
and chaos, order in the juristic sense still prevails

even if it is not of the ordinary kind. (PT, pp13-13)

Let us recall
that even for general equilibrium theory in economics it is those
“disturbances” or “noise” that challenge the validity of the theory. Schmitt
does well to challenge “normal jurisprudence” (legal positivism in large part).
But he is wrong to insist on the “legality” of the state of exception and of its political State – because the
exception challenges both “normality” as well as its enforcer, the State, whose
entire legitimacy and legality is destroyed by the exception!

The existence of the state is undoubted proof of its
superiority

over the validity of the legal norm. The decision
frees itself from

all normative ties and becomes in the true sense
absolute. The

state suspends the law in the exception on the basis
of its right

of self-preservation, as one would say. The two
elements of the

concept legal order are then dissolved into
independent notions

and thereby testify to their conceptual independence. Unlike the

normal
situation, when the autonomous moment
of the decision

recedes to a
minimum, the norm is destroyed in the exception. (p13)

In fact, more than just the norm is
“destroyed” by the exception: the legitimacy and legality of the legal order
and of its State is destroyed as well – and our task is to find out how this
can be so and why. It is therefore incongruous and inconsistent with his
realist-decisionist approach to political theory for Schmitt to insist that
“[in] the normal situation, ….the autonomous moment of the decision

recedes
to a minimum”, because
this “minimum” is “the spoonful of tar that spoils the barrel of honey”!

We cannot therefore agree with what
Schmitt contends below:

The exception remains, nevertheless, accessible to
jurisprudence [14]

because both elements, the norm as well as the
decision, remain

within the framework of the juristic.

It would be a distortion of the schematic disjunction
between

sociology and jurisprudence if one were to say that
the exception

has no juristic significance and is therefore
"sociology." The

exception is
that which cannot be subsumed; it defies general

codification,
but it simultaneously reveals a specifically juristic

element -
the decision in absolute purity. The exception appears

in its
absolute form when a situation in which legal prescriptions

can be valid
must first be brought about. Every general norm

demands a
normal, everyday frame of life to which it can be

factually
applied and which is subjected to its regulations. The

norm
requires a homogeneous medium. This effective normal

situation is
not a mere "superficial presupposition" that a jurist

can ignore;
that situation belongs precisely to its immanent validity.

There exists
no norm that is applicable to chaos. For a

legal order
to make sense, a normal situation must exist, and

he is
sovereign who definitely decides whether this normal situation

actually
exists. (p13)

But “the exception” assumes paramount
importance in Schmitt’s unquestionably provocative reformulation of the theory
of the state and of legal order not for
the occurrence of the sovereign deciding that a “normal situation actually
exists”, but rather for deciding the opposite – that a normal situation does not exist and that a “state of exception” is
declared! The extent of Schmitt’s confusion is amply demonstrated by
the suite to this paragraph:

All law is "situational law." The sovereign produces and guarantees

the situation
in its totality. He has the monopoly over this

last
decision. Therein resides the essence of the state's sovereignty,

which must
be juristically defined correctly, not as the monopoly

to coerce or
to rule, but as the monopoly to decide. The exception

reveals most
clearly the essence of the state's authority. The

decision parts here from the legal norm, and (to
formulate it

paradoxically) authority proves that to produce law it
need not

be based on law. (pp13-4)

The fact that a “legal order” requires
the “legitimacy” of the norm and the “legality” of the decision does not mean
that, once the exception obtains, this “exceptional decision” remains “within the framework of the juristic”,
because that begs the question of why “the juristic” brought about a “situation”
in which the existing legal order could be “suspended” to allow “the decision
on the exception” on which, Schmitt tells us, sovereignty is founded.
“Sovereignty”, but not necessarily “authority”! Yes, indeed, “[t]he decision
parts here from the legal norm, and (to formulate it paradoxically) authority
proves that to produce law it need not be based on law”. But in “parting from
the legal norm” the decision actually radically questions, challenges and
finally negates the legal-logical
foundations of both the legal norm and of the State’s “authority” as well! The
decision on the exception actually
negates (!) the State’s authority except
in its meaning as “coercion and coaction” because the State could not have come
to be a “State of exception” had its “authority” not been seriously undermined
in the society governed by its legal order! The fact that Schmitt feels
impelled to introduce without further explanation the novel notion of authority “to prove that to produce law
[the State] need not be based on law” is further evidence of his confusion on
this point.

B.
The Decision and the Will

Schmitt perceives the difficulty, which
explains why he seeks to compromise his formulation of the pivotal relation of
exception and decision:

The
assertion that the exception is truly appropriate for the

juristic
definition of sovereignty has a systematic, legal-logical foundation.

The decision
on the exception is a decision in the

true sense
of the word. Because a general norm, as represented

by an
ordinary legal prescription, can never encompass a total

exception,
the decision that a real exception exists cannot therefore

be entirely derived from this norm. (PT, pp5-6)

Yet, if “the decision that a real exception exists cannot therefore be entirely derived from this [general]
norm”, then no decision on the exception can ever be “a decision in the true
sense of the word” because its “decisiveness”, its “quiddity” or “facticity” is
then violated or vitiated by the fact that it is partially derived from the general norm that re-conduces it to the
sphere of the “juristic”. Schmitt has here resurrected the neo-Kantian
conception of law and the State. That explains why he is then impelled to
resort to the notion of sovereignty as “a systematic, legal-logical foundation”
– quite an “exceptional” (!) claim for the theoretician of the exception as the
subversion of rational systems! Again, in the attempt to recuperate this
systematic-rational concept of “sovereignty” – “which must be juristically defined correctly”! - for
the State within the homology of the neo-Kantian legal form, Schmitt is even
prepared to call into play (in the tradition of Jaspers and Lukacs) the notion
of “totality”. - All of which is antinomic to the notion of “exception” that
Schmitt champions in this work!

Schmitt’s analysis of the legal order
as characterized by norm and decision -
which in turn gives rise to the division of jurisprudential doctrines
into normativist and decisionist – is analogous to our earlier discussion of
the notion (in ‘The Philosophy of the Flesh’) of “arbitrium” which, in its
moment as arbitration, involves an element of “judgement” founded on “rational”
principles (understood even in a Weberian fashion), but then in its “arbitrary”
moment is characterized by the actual decision which is no longer based on
rational legal-logical or formal principles but rather resides with the actual
person (or “will”) responsible for making that decision. Irrespective of how
this responsible person is appointed or charged with making a decision, the
ultimate arbitrariness of the process as well as of the content of the decision
cannot be gainsaid.

Schmitt incisively proves this argument
by pointing out that even a “wrong” or “false” decision remains a “valid”
decision from this perspective!

That the legal idea cannot
translate itself independently can be is evident from the fact that it says
nothing about who should apply it….That it is the instance of competence that
renders a decision, makes the decision relative, and in certain circumstances
absolute and independent of the correctness of its content….A legal validity is
attributed to a wrong and faulty decision. The wrong decision assumes a
constitutive element precisely because of its falseness. (PT, p31)

It
is the fact – the substantive content
of a decision, its “effectuality” – that even a “false” or “wrong” decision is
still a “valid” decision that shows conclusively how dependent the legal idea
or norm is on the authority of the person who decides – which the legal idea as
such cannot indicate. Schmitt’s
devastatingly blunt argument here is entirely identical with Nietzsche’s
apocalyptic remark in Wille zur Macht that
“seen from the moral viewpoint, the world is false”!What is “false”, of
course, is the moral viewpoint and not the world, because it is the world that enables and constitutes the moral
viewpoint. Similarly with the legal norm, it is the norm and not the decision,
not the personality of the decision, the Sovereign, that can be “false” – not
the other way around!

Kelsen solved the problem of the concept of
sovereignty by

negating it. The result of his deduction is that
"the concept of

sovereignty must be radically repressed." This is
in fact the old

liberal negation of the state vis-i-vis law and the
disregard of

the independent problem of the realization of law.
This conception

has received a significant exposition by Hugo Krabbe.
His theory

of the sovereignty of laws rests on the thesis that it
is not the

state
but law that is sovereign. (PT, p21)

This is the limit of Weberian
rationality (discussed by Schmitt on p27), one whose “formal” properties, in
the absence of any “substantive” element of human inter esse, must ultimately be founded on what are in its own terms “irrational”
principles. This salient point is made quite validly by Lowith in his review of
Schmitt’s jurisprudence because Schmitt, unlike Nietzsche, never moves beyond
the challenge of “the rule” (the rationalist order or system) and insists
instead on the “juristic” nature of the decision on the exception. In other
words, Schmitt himself, though challenging normativism and positivism from the
“wholly other” of the exception or “disturbance”, simply fails to tackle
critically the entire notion of law and of the legal order. Schmitt understands
“the political” in a Hobbesian sense – the state of nature as a status belli in which the State does not
play a “neutral” role but an interested one that includes its
self-preservation. But the elision of the complex transition from individuals
to association to “State” or res publica
or common-wealth is never outlined or even tackled by Schmitt who simply
hypostatizes the State uncritically as an “Idol”.

This is the basis of Lowith’s critique,
although he focuses on the role of the “individual” in any association that
becomes a legal order with a State.

This is the ambivalence in Schmitt: on
one hand, the decision is a “qualified decision”, that is, a “judgement” that
presupposes a criterion of whether or not an “order” or “normality” exists. On
the other hand, the decision, in its arbitrariness, is not subject to any
pre-existing criteria whatsoever – it is sheer naked violence. That is why
Lowith is both right to criticize Schmitt’s decision for being “auf Nichts gestellt” – but at the same
time he is wrong because it is this “nothing” that founds the violence of the “mere decision”, its “facticity” – life
as exploitation (Nietzsche). The objections that those most erudite liberal
critics of Schmitt, from Leo Strauss to Lowith, move to his theory of politics
all presume the existence of a
Ratio-Ordo that legally-logically – “necessarily” – requires the State to be
subordinate to “the law”, whose “content” is then supposed to “emerge” or
“spring” from the “community”. Yet, if this comunitas
actually existed, if its truth were real,
then there would be no need of a “State” in the first place! Contra Schmitt, however, it can be said
that he fails to explain how a State can come into being at all! Yes, indeed: a
“decision” may be “auf Nichts gestellt”
– “be taken out of nothing”, that is, be the product of pure arbitrium -, but not a “State”, because
a State is composed of “in-dividuals” whose self-interests must somehow
converge so as to form a “friend-ship”,
a group of “friends” opposed to their “foes”: and this con-vergence or conventum, must have a “con-ventional”
basis that as such can be recognized by all parties to it. Schmitt makes the
fundamental error of thinking that there can be an “intrinsic value of form”
(see above), that form and substance can meet in the “decision” because the
decision is “exceptional” with respect to what is the “normal” legal order, and
seeks to preserve it. But if this were correct, then once again it would be the
“normal” that explains the “exception”, and not the other way around as Schmitt
had argued earlier! His notion of “decision” is simply too formal, it lacks
sub-stance, and therefore cannot provide a proper account of the State – even
one that challenges the ratio or telos of its classical theories.

And therein lies the paramount
importance of “the exception”. The State, or the sovereign, is “he who decides
on the exception”. This “de-cision” is – as I now style it – an incision in
time: it is a pivotal point that “arbitrarily”, not rationally or
“systematically” or “formally”, founds the battleground
of politics and thus protects and
preserves the social peace. Protection that must be traded for obedience: – not
(!) in a “con-sensual” manner, but only in an “authoritarian” fashion.

‘Sovereign
is he who decides on the exception.'

Only this definition can do justice to a borderline concept.

Contrary to the imprecise terminology that is found in
popular

literature, a borderline concept is not a vague
concept, but one

pertaining to the outermost sphere. This definition of
sovereignty

must therefore be associated with a borderline case
and not with

routine. It will soon become clear that the exception is to
be

understood to refer to a general concept in the theory
of the

state, and not merely to a construct applied to any
emergency

decree or state of siege.

There are two sides to the decision,
then – two sides of the “border-line”. One side belongs to the establishment of
the “legal norm” so that “normal decisions” can be made as “routine”. The other
side of the decision, however, is its real foundation, its “facticity” that
simply cannot be com-prehended as part of the norm, of a rule or order or
system or unity or “totality”, or indeed of “truth”. It is this “materiality”
or substantiality of the decision that makes Schmitt invoke Hobbes approvingly:
“Auctoritas, non veritas facit legem”.
The exception, therefore, is the “truth” of “normality”, as Schmitt claims. But
as this obverse, as this “wholly other” of the legal norm, the decision itself
– as e-voked by the exception – is not and cannot be com-prehended by the
“norm”, because it lies wholly outside
the norm! (Recall our discussion of Arendt’s “constituent power” and
“constituted power” in Part Four of the Weberbuch.)The decision on the exception, which is
the mark and seal of sovereignty, is an “either-or”, an “aut-aut” that founds the legal norm. This legal norm,
in turn, grants “legality” to the sovereign but it does not itself have
“legitimacy”. The legitimacy of the legal norm is its “legality” – but legality
cannot legitimate the legal norm. Only if the law possessed an implicit “truth”
could it found itself, legitimate itself. But it does not: the “truth” of the
law is “authority”, the “fact” of the decision,
its power to coerce, its command, which cannot be founded on “legality” but on
“legitimacy” or “competence”.

The legal prescription, as the norm of decision, only
designates how

decisions should be made, not who should decide. In
the absence of a

pivotal authority, anybody can refer to the
correctness of the content.

But the
pivotal authority is not derived from the norm of decision.

Accordingly, the question is that of competence, a
question that

cannot be raised by and much less answered from the
content

of the legal quality of a maxim. (PT, pp32-3­)

[A similar argument, though from “rationalist”
positions, is made by Rafael Agapito in his lengthy and appreciable
introduction to the Spanish translation of El
Concepto de la Politica. With unusual perspicacity, Agapito explains how
Schmitt – so keen to supplant the “juridic form” with the “political substance”
of the decision – succumbs to his own brand of formalism, in that the decision,
as an ultimate instance or ultima ratio, becomes simply an
onto-logical category, that of “facticity” or “quidditas” (Dass-Sein), and not
what Schmitt intended it to be originally, a historical-substantive and political, as well as part-juridical
one. The merit of Agapito’s review and critique of Schmitt is to have seen that
“the political” is not and cannot be “irreconcilable” or “eristic”, as Schmitt
and the entire negatives Denken (its
“negativity” consists largely in this) presume – because at the very least, as
in Hobbes’s version of it as “the fear of death” (not its inevitability, as in
Heidegger, but its “fear”), the Political must involve an element of
inter-subjectivity, the “foundation”, the co-hesion of the “polity” and the
“disputandum” that it occasions. Yet the
vice of his critique is to posit the
requisite “inter-subjectivity” still in terms of what lies between subjects that remain irreducibly “in-dividual”, a-tomic and
atomized. Consequently, Agapito elevates and even glorifies the
liberal-bourgeois “Constitution” without looking closely at the effective
correspondence of this Constitution to the “will of the people”: he approaches
the liberal legal order in terms of its own self-understanding and not in terms
of “material Constitution” – which is essentially the critique that Marx moved
against Hegel’s theory of the State. Agapito pretends to substitute idealistically if not ideologically the
“arbitrary, conjunctural will” of the negatives
Denken with the “social unity”, as against mere “homogeneity of the people”
that Schmitt refutes, supposedly supplied by a mythical “intersubjective
criterion” that Agapito recklessly attributes to liberal bourgeois
constitutions!

For Schmitt, politics means conflict,
even to the extent that the “sovereignty” or “authority” of the State is
disputed. For Hobbes, political theory entails the end of politics. Auctoritas, non veritas facit legem:
Hobbes admits that his “subjects” cannot engage in a contractum unionis unless this becomes im-mediately a contractum subjectionis. But how can
this be? What value does life or the fear of death have in Hobbes’s theory that
can lead out of the bellum civium? There is a glaring contradiction here
between the “truth” or Ratio of the preservation of life – this inter esse – and the “authority” that is
needed to found the Law of the social contract, and the State with it. This is
quite apart from the inability of Hobbesian theory to explain the
“distribution” of “power” in a society, except in a “mechanical” manner – which
cannot account for historical transformations. If a historical state of nature
exists, in which “life is nasty brutish and short” – how can the self-same
individuals who populate the state of nature, mere a-toms who do not share
anything except their con-flicting free-doms, agree to exit it?

Hobbes says that “power” as a Euclidean
(geometric) and Galileian-Newtonian (mechanical) hypothesis can be hypostatized in the State, by rational convention: thus “scientific
rationality” is comforted by “rational free choice”: freedom and necessity are
reconciled. In Schmitt’s words, for Hobbes “the machine runs itself”! Schmitt
and Heidegger reject this possibility as the idealistic mirage of the era of
bourgeois Enlightenment. For Hobbes, infinitely small points can form a line;
for Schmitt instead, more consistently, the line remains a point. For Hobbes,
the facticity of authority does turn into the truth of law and the State through
the rational free choice of self-interested individuals in the state of nature.
In Schmitt, instead, the facticity of authority rules over the law and the
State – which is why the authority of law and the State (“the force of law”)
must return to the subject of the decision, the command and the in-divisible
will of the sovereign in-dividual.

Words such as order,
system, and unity are only circumscriptions of

the same postulate, which must demonstrate how it can
be fulfilled in

its purity. It has to be shown how a system can arise
on the foundation

of a "constitution" (which is either a
further tautological circumscription

of the "unity" or a brutal sociopolitical
reality). The systematic

unity is, according to Kelsen, an "independent
act of juristic

perception. "

Let us for now disregard the interesting mathematical assumption

that a point
must be an order as well as a system and

must also be
identical with a norm; let us ask
another question:

On what does the intellectual necessity and
objectivity of the

various ascriptions with the various points of
ascription rest if it

does not rest on a positive determination, on a command? (p20)

For Schmitt the Euclidean line retains
the essential properties of the point, the point cannot “merge” into a line
except through a meta-physical projectio
per hiatus irrationalem. – The Sovereign or the State remains an
individual, an indivisible will. The
Sover-reign may “reign” but not “rule” only in situations or legal orders, from
constitutional monarchies to liberal parliamentary democracies, in which the
ultima ratio, the ultimate foundation of authority or “competence” is carefully
hidden from view. But in the naked brutal reality of the Political the
indivisibility of decision and sovereignty cannot be avoided.

The decisive point about Bodin's

concept is that by referring to the emergency, he
reduced his

analysis of the relationships between prince and
estates to a

simple either/or.

This is what is truly impressive in his definition of
sovereignty;

by considering sovereignty to be indivisible, he finally settled the

question of power in the state. His scholarly
accomplishment and

the basis for his success thus reside in his having
incorporated

the decision into the concept of sovereignty.(p8)

This is why the State is not and cannot
be “wholly other” or “neutral”, like the Protestant God or the State of Law of Political Economy.
The State does not stand, as in Hobbes and the liberal tradition, au dessus de la melee: it is an interest
in society; its interest is the preservation of itself as “state”, as the legal
order. And this preservation depends on a political “decision”, on sovereignty
that is not assigned by law but that is rather the very “content” of law. As
the defensor pacis (Marsilius), the
State is for Schmitt not the pro-duct of the con-vergence or con-vention of
individual self-interests as found in the state of nature (the degree zero of
politics), even as the Hobbesian ultima
ratio of avoiding death. Rather, the State is a direct product of the conflict, of the di-vergence of these
self-interests – so that the State remains conceptually tied to the state of
nature – it does not transcend it. There is no “meeting of the minds” or wills
upon which the State can be founded; rather, the State is the sovereign that
can preserve social peace not by “mediating” or “reconciling” the conflicting
interests of the state of nature, but rather by ensuring that “friends” keep
the “foes” in check. The State is not a pro-duct of law, and thence
sub-ordinate to law. Instead, the State as sovereign determines the “content”
of the law, it does not “ascertain” the law; it does not “find” it; it
“creates” it.

In what Schmitt calls “the age of
neutralization”, the terminus ad quem
of romanticism is to attain the realization of “the system” so as to eliminate
conflict from social life and with it to
neutralize “the political”. This is the aim of all scientism and
rationalism. But by “the political”, Schmitt means “conflict”, its
ineluctability even and especially in the state of nature. Hobbes saw the
political as the way out of the state
of nature, which he conceived of as pre-political.
His starting point was the in-dividuum,
just like the point in Euclid,
and its self-interest, which
consisted principally of the a-voidance of death and the pre-servation of life.
This is the foundation of the “common weal”and therefrom, mechanically or more geometrico, of the common-wealth,
of the State. As in Euclid,
Hobbes’s “point” or individuum “merges” miraculously into the “line” of the common
weal, of the social contract.Schmitt
instead starts with the State as an interested party in what is the political
state of nature, which, contrary to Hobbes, does not begin with individual
self-interest but rather with the division of humanity into “friends and foes”.
For Schmitt therefore the state of nature is not pre-political, as it is in Hobbes, but rather the very essence of the political because its
bellum civium – its conflict between “friend” and “foe”, rather than between
atomized self-interested in-dividuals – is one in which even the Sovereign
takes part. The Sovereign rules at all times – he never simply “reigns”. (Cf.
the famous review of Schmitt by Leo-Strauss.)

To be sure, Protestant theology

presents a different, supposedly unpolitical doctrine, conceiving

of God as the "wholly other," just as in
political liberalism the

state and politics are conceived of as the
"wholly other." We

have come to recognize that the political is the
total, and as a

result we know that any decision about whether
something is

unpolitical is always a political
decision, irrespective of who decides

and what reasons are advanced. This also holds for the
question

whether a particular theology is a political or an
unpolitical

theology. (p2)

Hobbes’s Leviathan is a deus mortalis because, like a god, it is
the incarnation of the Ratio of the will and therefore it cannot be merely
“mortal”, like any individual, because its mechanistic scientific hypothesis is sustained by the
“immortal” or divine Ratio of the free will that allows the reaching of a
social contract, of the con-vention.
On the other hand, however, Hobbes’s Sovereign is a deus mortalis because, like that of all sovereigns, its decision is
“mortal”, it is based not on “truth” but on “authority”, that is, on the
“power” possessed by a “particular authority” or will and is objectified in a
“concrete decision” or “command”. Hence, the machinery of the State stands with the scientific hypothesis and
the “authority” of the will of the Sovereign, whereas the ratio of the convention of free wills stands with the “truth” (veritas) of the State as the emanation
of the legal order, of the Norm. Here is the fatidic dualism of Soul and Form,
Spirit and Machine, Freedom (contingency) and Necessity (logico-scientific).
Schmitt intuits this antinomic dualism implicit in Hobbesian political and
legal theory and genially makes it explicit, as the following extract reveals:

It is striking that one of the most consequential
representatives

of this abstract scientific orientation of the
seventeenth century [Hobbes]

became so personalistic.
This is because as a juristic thinker he

wanted to grasp the reality of societal life just as
much as he,

as a philosopher and natural scientist, wanted to
grasp the reality

of nature. He did
not discover that there is a juristic reality and

life that
need not be reality in the sense of the natural sciences.

Mathematical relativism and nominalism also operate
concurrently.

Often he seemed to be able to construct the unity of
the

state from any arbitrary given point. But juristic thought in those

days had not
yet become so overpowered by the natural sciences

that he, in
the intensity of his scientific approach, should unsuspectingly

have
overlooked the specific reality of legal life inherent

in the legal
form. The form that he sought lies in the

concrete
decision, one that emanates from a particular authority.

In the
independent meaning of the decision, the subject
of the

decision has
an independent meaning, apart from the question

of content.
What matters for the reality of legal life is who decides. (PT, p34)

Hobbes never completely resiles from
the “scientific truth” of his axioms, because he identifies “truth” with the
very “facticity” of “authority”, so that for him there is no antinomy or apory
between the two. For Hobbes, the “truth” is not to be found in the theo-logical emanation of laws but rather in
their “mechanistic” facticity. As Schmitt puts it, the machinery of State – the
“mortality” of the deus mortalis – is not determined by the divine, and yet
Hobbes knew that the “divinity” of the deus
mortalis, the underlying scientific Ratio of the machine, had to be founded
ultimately on the “mortal” decision! An entirely mechanical State would
relegate the “mechanical laws” under which it operates from the realm of
“logico-scientific necessity” to that of complete contingency. The Ratio of the State had therefore to be
located not in its “mechanical” make-up but rather in a “free” decision whose
“rationality”, however, ends up being no less contingent than the mechanical
laws and rationality of the State!

By contrast, and much more
consistently, Schmitt ascribes to the auctoritas
of the State a real substantive ascendancy over the veritas not only of the legal form and norm but of any “scientific”
reality whatsoever. The Schmittian sovereign remains an “in-dividuum”, because
the decision is in-divisible and must rest ultimately on one will: it is this Individualitat of the decision on the
exception – what Schmitt calls the “personality” of the Sovereign - that
precludes it from being absorbed into any “logico-scientific” schema. As we
have learned from Nietzsche, this applies both to the legal-moral order and to
the logico-mathematical and scientific one!

That constitutive, specific element of a decision is,
from the perspective

of the content of the underlying norm, new and alien. Looked at normatively,

the [32] decision
emanates from nothingness. The legal
force of a decision

is different from the result of substantiation.
Ascription is not

achieved with the aid of a norm; it happens the other
way around.

A point of ascription first determines what a norm is
and what

normative rightness is. (PT, pp31-2)

Recall once more Nietzsche: “Looked at
from a moral point of view, the world is false!” But because the world is “ausser-moralisch”, it is morality that
is “false”, that contains no “truth”,
but can contain only “authority”. It is not morality (the Hobbesian lex qua veritas) that a-scribes the
world (lex qua auctoritas), but
rather the world that ascribes morality (auctoritas
qua lex). And just as the world is “contingent” – emanating from
nothingness – so is also the decision (which, as we styled it earlier, is an
in-cision in time, an act that is “substantive” and “a-scriptive” by its very
nature – an “act of will” is a pleonasm!).

The law gives authority,

said Locke, and he consciously used the word law
antithetically

to commissio
which means the personal command of the monarch.

But he did not recognize that the law does not
designate to whom

it gives authority. It cannot be just anybody who can
execute

and realize every desired legal prescription. The legal prescription,

as the norm
of decision, only designates how decisions should [33]

be made, not
who should decide. In the absence of a pivotal

authority,
anybody can refer to the correctness of the content.

But the
pivotal authority is not derived from the norm of decision.

Accordingly, the question is that of competence, a
question that

cannot be raised by and much less answered from the
content

of the legal quality of a maxim. (PT, pp32-3)

C.
The Decision and the Political

The point of the “facticity” of the
conception of the Political in the negatives
Denken is illustrated most tellingly by Lowith in a fascinating
homologation of the political philosophy of Schmitt with the existential
(though not necessarily “existentialist”!) onto-theo-logy of Heidegger.

In the quotation above, Lowith
homologates the “decision” in Schmitt’s political theory with the “freedom
before death” (reminiscent of the “sickness unto death” of Kierkegaardian
memory) that Heidegger underlines doubly in his magnum opus, Sein und Zeit. This is what Heidegger
achieves for Schmitt: - the de-struction of form, of system, order and unity,
of “totality” as the “truth” or necessity of all human concepts - which begins
with the only “freedom” possible for Heidegger, that of freedom as contingency,
as the possibility of nothingness: and
hence of the decision “auf Nichts
gestellt”. It is this pro-jectuality that allows truth to be seen as
“dis-closedness”, being as becoming, and therefore freedom as “resolve” (Ent-schlossenheit), as resoluteness - as
Decision.

Interesting is the contrast with Hobbes
who sees death in a political dimension, rather than an ontological one (like
Nietzsche, not the “fact” that we die but “how” we die is important for him) by
selecting the “fear” of violent death, and the related “clinging to life”, as
the motive for the exit from the state of nature into the “political” one of
the “common wealth”. In effect, the only “free-dom” possible for Hobbes is in
the state of nature where the human will has free rein. It is the
“irrationality” of this state of nature, its bellum civium, that induces the free will to exercise its “rational
decision” to opt for the status civilis,
for the social contract establishing the common-wealth and the State to protect
it.

Schmitt objects here that Hobbes’s
polity in effect marks the transition or exit from a mythological state of
nature that is un-political by
definition (the war of all against all, “anarchy and chaos”) into an equally
un-political “state” in which the adherents to the social pact “renounce”
politics by alienating their “free-dom” to a wholly mechanical State in
exchange for its protection. Politics as conflict now exists in foro externo – between States but not
within them, in foro interno. If the
State is to be truly super partes,
then ultimately no politics is possible within its territory. Freedom therefore
means for Hobbes the “free-dom” to decide autonomously over one’s conduct in
the state of nature and inevitably clashing with the free-dom of others. Unlike
Heidegger’s existential notion of freedom, Hobbes’s is mechanical at one end
and rationalistic at the other. As Lowith correctly notes above, Hobbes’s
“freedom” contains the Ratio that leads to the inter esse of the “common wealth”.

This is not the “freedom” that
Heidegger intends. For Heidegger freedom means “contingency”, the possibility
of annihilation, the opposite of logical necessity or teleological destiny. For
Hobbes freedom is a relation to other individuals – so that his state of nature
contains a “political” notion of freedom, but one that annuls itself because
this “free-dom” does not take an institutional form but remains rather one tied
to the “anarchy and chaos” of the bellum
civium, the civil war of the state of nature. In Heidegger the will becomes
the very foundation of all reality, whereas in Hobbes it is the escape from the will – freedom from the will, from the destructiveness
of this will – that is the aim of political theory for the sake of the rational
preservation of life and the avoidance of death: only to see this will clash
aporetically with its axiomatic mechanical self-interest. Heidegger’s will is
reconcilable with life and politics because it is essentially ontological;
Hobbes’s is not because it is an acquisitive will that is entirely atomic and
a-political. Hobbes’s will is so unilateral, so one-sided, that it is not
“free” to decide in favour of the preservation of “life” or of the “common
weal” – it can only at best opt for self-preservation, to a-void death. This is
the ultimate fallacy of “possessive individualism” from Hobbes to Smith and
neoclassical theory.

In both Hobbes and Heidegger the will
is an ontological entity, not a political one; but it necessarily becomes
political at the point of decision, when it becomes organized conflict, coaction and co-ercion. And this is why Schmitt
combines the decision with the pre-existence of “friend” and “foe”, the
imprescindible moment of the “Political” that is not “acquired” historically
from the state of nature or “instituted” contractually, but is rather a “given”
of the universal Eris, a quidditas or
qualitas occulta, a world from which
even the aporetic Hobbesian Ratio of the decision (however “ultimate”) to exit
the state of nature and to enter the Ordo of the contractum unionis et subjectionis is removed. Heidegger emphasizes
resolve (Entschlossenheit) as the moment of “decision” rather than as the Ratio
of politics. But he does not escape the “political romanticism” decried by
Schmitt – because his ontology is part of that “neutralization of politics”
that Schmitt combats. In this regard, Lowith’s homologation of Schmitt and
Heidegger misses the mark. But not entirely; not with regard to the “facticity”
of authority, or “power” in the Hobbesian sense, or “sovereignty” in the
Schmittian sense. This “facticity” is the quidditas,
the qualitas occulta that is the
exclusive preserve of the Will as understood by the negatives Denken, that is to say, as the obverse of the Kantian Ding an sich.

The Hobbesian ultima ratio is the fear of one’s
death and the preservation of one’s life
at the hand of other in-dividuals (cf. Schmitt, Der Leviathan, beginning of ch.3). But that is where politics ends.
Schmitt knows that this is far from the reality: – not only does politics not
begin with the exit from the state of nature, but that state of nature could
never have existed because for an “exit” from it to be at all possible, then
that exit must invalidate both the historical
existence and the conceptual
possibility of the state of nature! In effect, it is impossible to conceive of
a state of nature from which there is an escape! Besides, “fear” is not a
positive emotion that can found the Political, let alone a “common-wealth”! And
the State cannot be a God super partes,
however “mortal” Hobbes chooses to label it. Its “mortality” betrays its
“partiality”: “authority” would otherwise become a “truth”, which is what
Hobbes denies, instead of retaining its “facticity”, which is what Schmitt
maintains.

The genius of Hobbes was to posit the
alienation of personal freedom (the freedom
of the will) for the sake of the preservation of life intended in the
“negative” sense of “fear of death”: this last is what supplies the con-ventum, the agreement on which the
State as “common wealth” can be erected consistently – the “system” or “order”
or “freedom from the will”. This is
the “truth”, the rationalist inter esse
of Hobbes’s political theory that is exalted in all the “liberalist” and
contractualist interpretations of his theory (starting with Leo Strauss). But
for Schmitt, no such inter esse
exists or can exist – because the State is not super partes; it is a “partisan” that de-fines the political boundary between friend and foe, – a
boundary that is absolutely inescapable not merely in foro externo, with regard to other,
foreign States, but also and above all with regard to the conflicts
internal to the “State”, in foro interno.